Hi all,

we have a client who became a FT student who is eligible for HB. The client did not apply for any student loans and decided to work PT and support themselves.

our LA now seems to have adjusted the HB entitlement to take into account the student loan income, on the basis of deprivation of income/failing to apply for income.

are there any grounds of appeal against this?

HB Reg 64 (3) and (4) would suggest not. Basically says a student should be treated as possessing a loan if he/she could acquire one by taking reasonable steps to do so; and that the maximum amount that could be so obtained should be the amount taken into account.

oh well, would have though that there would have been some grounds of appeal.

Backdated DHP to combat HBOP? Clutching at straws?

If an OP has been caused, what about official error? If the LA has only just realised that it should have been taking the loan into account even though it had not been obtained, it is their mistake, and one which I would have thought any claimant could not have been reasonably expected to spot.

i've an idea this has come up before and someone, but i can't remember who, was contemplating a human rights challenge... i may have imagined it...

i do think there is an argument...a student loan isn't a student grant however it's dressed up. treating the loan as income is one thing, but treating it as deprivation of income through failure to avail may be quite another. doesn't a person have a right to decide whether to go into debt which they face repaying for years of their lives, based on their own judgement of their circumstances and interests, and does government have a right to override that personal decision?
if our welfare state is now going to be able to force people into debt, maybe we should ask for a refund under the trade description act?

anyway,back to the point - have they calculated an overpayment? don't tell me they're saying he should have told them he wasn't getting a student loan?

"i've an idea this has come up before and someone, but i can't remember who, was contemplating a human rights challenge... i may have imagined it..."

See discussion topic 2133. Not a human rights challenge as such. Put firmly to bed by CIS/2174/2005

Link:

http://www.rightsnet.org.uk/dc/dcboard.php?az=show_mesg&forum=103&topic_id=2133&mesg_id=2133&listing_type=search

cheers steve
relieved at least that i wasn't imagining...

i haven't been able to track the CD down though, is it on rightsnet...?

No, but have just e-mailed it to rightsnet for you. Perhaps Shawn or Ken might be kind enough to publish it.

Except its just bounced. Sent it to rightsnet@lasa.org.uk. Is this the right address?

well yes they have calculated an overpayment to the tune of £1300! there wonderful letters advise "change in financial circumstances". you know they ones i mean JJ.

: ) oh yes!

The overpayment letters are not even valid "change in financial circumstances" is no reson at all. Have a look at R v Thanet District Council ex p Warrren Court Hotels Ltd CA 6 April 2000.

I have no doubt on the info so far that this overpayment is cuased by an official error and is not recoverable, even if the decision was properly notified

Thanet and Warren Court Hotels was only heardd in the Queeens Bench Division, not the Court of Appeal.

I have a copy and have emailed it to Rightsnet

here you go ....

• CIS/2174/2005
  
• Regina v Thanet District Council ex parte Warren Court Hotels Limited
  

LA appear to be OTT in arguing failure to apply for / deprivation of income. As Reg 64(3)&(4) simply requires a student loan to be taken into account in full as income (subject to the disregards) such argument is irrelevant (and amounts to the same thing).

We get similar cases from time to time where a LA either fails to take loan into account (either when student decides not to take it out, or does actually take it in full) or only take into account amount actually borrowed rather than full eligibla loan. Result overpayment.

Our experience suggests there are 2 key issues:

(1) did the student make disclosure of their student status including enough information about the course etc to suggest they were eligible for a student loan (LA may try to argue that not enough info was given so LA were not on notice that Reg 64 might apply).

(2) if the claimant did make disclosure, was LA failure to act an 'official error' and, therefore, does reg 100(2) apply - claimant could not reasonably have known it was o/p at the time of payment - see CH/2554/02.

Following Hinchey and B (see CPAG WRB 191) we would argue that the burden is on LA to show what claimant could reasonably have known. What specific info did the LA issue to claimant in decision notices, accompanying notes etc about what they must disclose in general and about student status / income specifically. LA cannot imply knowledge of the HB rules because, for example, client has been on benefit for many years or disclosed that they were a student and, therefore, must have known how student income would affected their claim (even if LA correctly took into account other forms of student income).

As a student is not required to take out a loan it is not the same as arguing s/he failed to disclose, for example, earnings. Unless the LA info. had a very specific point along the lines of 'you must tell us if you become a full time student. You must tell us about any student income you receive. you must tell us if you are eligible to apply for a student loan even if you decide not to apply for it or to apply for the full amount'.

Unless the decision notice gives a very detailed and clearly annotated breakdown of the student income calculation it may be difficult for LA to argue student should have known there was an o/p from looking at the decision notice because no student loan income was included (and see above if no loan was actually taken out).

As ever a case will turn on its facts but it is worth requesting a copy of all info LA allege they sent to the specific claimant, copy of all records re disclosure, etc.

Good luck!